COMPETITION LAW

JANUARY 2021

INDIAN COMPETITION LAW:

HOW TO CONTEST EFFECTIVELY AN INQUIRY RELATING TO ANTI-
COMPETITIVE AGREEMENTS BEFORE THE COMPETITION
COMMISSION OF INDIA/DIRECTOR GENERAL
(PART I)
INTRODUCTION

The present antitrust/competition law, the Competition Act, 2002, inter alia, deals with
one of the substantive laws relating to prohibition of anti-competitive agreements
(under Section 3) which was enforced w.e.f. 20th May, 2009. An anti-competitive
agreement is an agreement entered into by and between enterprises or persons,
association of enterprises, in respect of production, supply, distribution, storage,
acquisition or control of goods or provision of service which causes or is likely to cause
an appreciable adverse effect on competition within India (“AAEC”)1 Such agreements
are treated in contravention of the Act and are void.2 These agreements are either
horizontal3 or vertical4 in nature. Section 3(5)(i) deals with the exemptions relating to
Intellectual Property Rights (“IPR”) and exports under Section 3(5)(ii). All these sub-
sections have been dealt with in detail in our various articles which are available at the
links given in the end of this article.

Having dealt with the substantive provisions of Section 3 in the various articles as stated
above, now we will discuss how to contest effectively an inquiry/investigation relating to
anti-competitive agreements before the Competition Commission of India (“CCI”)/
Director General (“DG”).

An inquiry/investigation relating to anti-competitive agreements can be contested

before the CCI/DG keeping in view of the factors as legislated in Section 19(3) of the
Competition Act, 2002, viz. statutory defences available to the contesting party. Besides
this, there are certain points which have to be kept in mind relating to violation of
principles of natural justice as it has been seen that the authorities under the
Competition Act often do not follow the same. It can either be during investigation by
the DG or during inquiry by the CCI. Thus, this topic can be discussed in three broader
heads:

1
Competition Act 2002, S. 3(1).
2
S. 3(2).
3
S. 3(3).
4
S. 3(4).

2
 1. Factors for Determination of AAEC under Section 19(3)
2. Violation of Principles of Natural Justice during Investigation by the DG
3. Violation of Principles of Natural Justice during Inquiry by the CCI

In this part of Article, we will discuss the factors for determination of AAEC under
Section 19(3) emphasizing on the decisional practice by the Competition authorities.

FACTORS FOR DETERMINATION OF AAEC (SECTION 19(3))

Any agreement, whether horizontal or vertical, is required to pass through the test of
AAEC. In case of allegation relating to horizontal agreement, a party against whom such
allegations are alleged is required to produce all the statistical data or other factual
circumstances in order to show that there is no AAEC in the market as the burden to
prove the same lies on it and not the party who is alleging the same. This is because the
contravention of Section 3(3) is based on per-se theory, whereas the contravention of
vertical agreement (Section 3(4)) requires the Informant/complainant to prove that the
AAEC is due to such contravention, as this provision is based on the rule of reason
theory. Thus, the contravention of Section 3 is dependent on the correct determination
of AAEC. Section 19(3) provides certain factors which the CCI has to determine in order
to find out/determine AAEC, which provides as under:

“(3) The Commission shall, while determining whether an agreement has an appreciable
adverse effect on competition under section 3, have due regard to all or any of the
following factors, namely:—

(a) creation of barriers to new entrants in the market;

(b) driving existing competitors out of the market;

(c) foreclosure of competition by hindering entry into the market;

(d) accrual of benefits to consumers;

(e) improvements in production or distribution of goods or provision of services;

3
 (f) promotion of technical, scientific and economic development by means of
production or distribution of goods or provision of services”.

Pleading of the above factors effectively is the dividing line between success or defeat of
the proceedings before the CCI. These factors can be divided into Negative factors and
Positive Factors. The existence of first three factors enumerated in clause (a) to (c)
normally indicates AAEC. These are negative factors as the entrepreneurs who provide
effective competition are required to be assured fairness, a level playing field, which is
the aim of negative factors. The presence of the other three factors enumerated in
clause (d) to (f) usually indicate no AAEC as they are in the nature of efficiency
justifications. These are positive factors as they relate to effective competition so that
the consumers are assured of low prices and high quality.5 The absence of the last three
factors alone can neither determine AAEC nor establish efficiency justifications.
Therefore, in most cases, it is more prudent to examine all the six factors together to
determine the overall impact on competition. The decisional practice by the authorities
under the Competition Act also highlighted this aspect. Now we will discuss the topic
under three heads as follows:

A. Negative Factors- Section 19(3)(a) to (c)

B. Positive Factors- Section 19(3)(d) to (f)
C. Decisional Practice by the Competition Authorities

A. NEGATIVE FACTORS

Now we will discuss negative factors as per Section 19(3)(a) to (c) as under:

I. Entry Barriers or Barriers to Entry

Conditions that constitute Entry Barriers may be structural or strategic. Structural

barriers have more to do with basic industry conditions such as cost and demand than
tactical action taken by incumbent firms. They may exit due to conditions such as

5
Ambuja Cements Limited and Ors. vs. Competition Commission of India, MANU/NL/0171/2018.

4
economies of scale and network effects. Sometimes it is possible to quantify these kinds
of barriers because it is known in advance how much it will cost to build an efficient
plant or to purchase inputs. Strategic barriers (Behavioural barriers) are intentionally
created by the incumbent firms in the market, possibly for the purpose of deterring
entry. These barriers may arise from behaviour such as exclusive dealing arrangements.

Some types of impediments can fall into either one of these categories, depending on
the particular facts of the case. Statutory/regulatory barriers, for example, could be
considered either structural or strategic depending on whether incumbent firms played
a role in persuading the Government to create them. Similarly, sunk costs are typically
structural but could be considered strategic if incumbent firms are responsible for
creating or enhancing them, such as by integrating vertically and thereby forcing
potential entrants to do the same thing.

A primary barrier to entry is a cost that constitutes an economic barrier to entry on its
own. It can also be called structural barrier. An ancillary barrier to entry is cost that does
not constitutes a barrier to entry by itself but reinforces other barriers to entry. It can
also be called strategic barrier.

Competition means full freedom for new firms to enter an industry with new and
cheaper techniques or new substitute product. The degree of freedom of entry depends
on the source of monopoly power in each case. The source may be Product
differentiation; Absolute cost advantage; Economies of scale; Patents and Initial capital
investment.6

In Theories of Competition in Economics:

A barrier to entry or an economic barrier to entry is cost that must be incurred by a new
entrant into a market that incumbent do not have or have not had to incur. Entry
barriers are simply the obstacles that prevent new firms from entering when price rise
above the competition level. Barriers to entry protect incumbent firms, restrict
competition in a market, contribute to distort prices, often cause or aid the existence of

6
D. P. Mittal, Competition Law and Practice (3rd edn.).

5
monopolies or give companies market power. A barrier to entry is a cost that delays
entry and thereby reduces social welfare relative to immediate but equally costly entry.
It can delay entry into a market but does not result in any cost advantages to incumbent
in the market.

The market structure and the corresponding levels of barriers to entry can be illustrated
as below:

Perfect competition Zero barriers to entry

Monopolistic competition Medium barriers to entry
Oligopoly High barriers to entry
Monopoly Very High Absolute barriers to entry

II. Driving Existing Competitors out of the Market

The big firms are able to apply price squeeze as to squeeze out the existing firms out of
competition. They are in a position to maintain favourable prices for their product,
because of the efficiency of large-scale production and other monopolistic advantages
that go with large scale. Similarly, firms with significant monopolistic buying power are
in a position to force down prices on many of the products or services needed in
production, e.g. by predation. The firm create structural barriers (product
differentiation, cost advantages, scale economies) discouraging new entry or squeezing
the existing small firms out of the market. Strategic entry deterrence involves some
kind of pre-emptive behaviour by the firms. The duty of the CCI is to prevent such
behaviour.7

III. Foreclosure of Competition by Hindering Entry into the Market

Through vertical integration, monopolies have the ability to prevent entry of the firms
into market. Sometimes it is claimed that even competitors can come together to
prevent a potential entrant. It is said that the use of monopoly power, however, lawfully

7
Ibid.

6
acquired, to foreclose competition, to gain competitive advantage, or to destroy
competitor, is unlawful. Vertical restraints that have the potential of foreclosing
competition by hindering entry into the market are as follows:

• Exclusive dealing and purchasing

• Exclusive/selective distribution

• Tie-in-sales, full-line forcing, quantity forcing and fidelity discounts

• Slotting fees- This requires the manufacturer to pay a fee to get its product
stocked. Such arrangements could make entry difficult for manufacturers

• Non-linear pricing and franchise fees- These involve payment of non-cost-related

discounts to existing retailers or franchises fees, thus raising the sink cost of
entry and making entry difficult for other retailers.

In all these cases, what is required to be established is whether the restraints create a
barrier to new entry or force existing competitors out of the market.8

B. POSITIVE FACTORS

In determining what constitute adverse effect on competition, the negative factors are
not of compelling significance. Consideration must also be given whether the action
results in (i) accrual off benefits to consumers, (ii) improvement in production or
distribution of goods or provision of services, or (iii) promotion of technical and scientific
economic development by means of production or distribution of goods or provision of
services. It has, therefore, also to be seen whether the action springs from business
requirements, the probable development of industry, consumers demand, and other
characteristic of the market. The mere fact that the parties to a combination eliminate
competition among themselves is not enough to condemn it. The question is one of
intent and effect, not to be determined by arbitrary assumption, but by close scrutiny
and objective scrutiny of the particular condition and purpose of each case. The

8
Ibid.

7
objective of competition law are to assure the consumers low prices and high quality
that flow from effective competition; and entrepreneurs (who provide vital competition)
fairness – a level playing field.

The competition should force the interest of producers (concerned mainly with profits)
into the interest of consumers. As long as competition prevails, producers can be urged
to pursue their own self-interest to the exclusion of all others.9

C. Decisional Practice by the Competition Authorities relating to Section 19(3)

This we will discuss by the decisions of CCI, COMPAT (now NCLAT) and the Supreme
Court under respective heads:

Some of the Cases Decided by the CCI

I. In Neeraj Malhotra v. Deustche Post Bank Home Finance Limited and Ors.10 (Case No.
5/2009 decided on 02.12.2010), delving deep into the framework of Section 19(3) of the
Act, the Competition Commission observed and outlined as follows:

a) A combined reading of Section 3(3) and Section 19(3) of the Act suggests that
although the term 'appreciable adverse effect on competition', used in Section
3(1) has not been defined, however, Section 19(3) of the Act states that while
determining whether an agreement has an appreciable adverse effect on
competition under Section 3 of the Act, the Commission shall have due regard to
all or any of the above mentioned factors.

b) The first three factors laid down in Section 19(3) of the Act, viz., (a), (b) and (c)
relate to negative effects on competition while the remaining three relate to
beneficial effects. Thus, in assessing whether an agreement has an appreciable
adverse effect on competition, both the harmful and beneficial effects are to be
considered.

9
Ibid.
10
[2011] 106 SCL 108 (CCI).

8
 c) For applicability of Section 19(3)(a), (b) & (c), there should be an agreement of
the nature defined under Section 2(b) of the Act, which creates barriers to new
entrants in the market or forecloses competition by hindering entry into the
market. In any market, any firm is free to leave the market.

d) The barrier to entry for competing firms must not be confused with difficulties in
exit, if any, faced by the consumers. Therefore, any aspect of any inconvenience
or difficulty faced by consumers must be examined in the context of Clause (d) of
Section 19(3). Section 19(3)(d) makes accrual of benefits to the customers as one
of the determinant factors for assessing appreciable adverse effect. If a
consumer finds it difficult to shift from one bank to another due to prepayment
charges, that difficulty must be examined under this clause. It must be kept in
mind that such a movement would only occur when interest rates are falling and
other banks are able to offer lower rates to new customers. A customer would
like to switch banks only if the interest rates fall enough to outweigh the burden
of prepayment charges.

e) For a fresh loan, a bank is able to raise funds at a lower cost. An older loan would
be backed by a higher costing fund on part of the bank. Accrual of benefit to the
consumer should not translate to accrual of loss for the bank since eventually it
would only drive out banks from the market of home loans or make them
drastically reduce the amount of home loans exposure or significantly raise the
bar for home loan eligibility. Eventually, it would result in making borrowings for
home loans more difficult for consumers. It is also pertinent to point out that
banks do mention a prepayment clause in their agreements, albeit not
prominently.

II. In Yashoda Hospital and Research Centre Ltd. vs. India Bulls Financial Services Ltd.11
(Case No. 12/2010 decided on 22.03.2011), the CCI observed and held that:

11
2011 CompLR 324 (CCI).

9
 a) The practice of levying pre-payment penalty and foreclosure charges by the
banks and financial institutions acts as an exit load, restricts or limits the
borrower from availing the best market rate of interest and impedes competition
among lending institutions. The existing borrowers have to incur additional cost
in the form of pre-payment penalty and foreclosure charges and it deters them
from making early repayment and refinancing of loan and therefore, such
practices by lending institutions are anti-competitive and violate provisions of
Section 3(3)(b) read with Section 19(3)(a), (c) and (d) of the Act.

b) It is wrong to presume that the parameters prescribed under Section 19(3) are
not required to be applied while assessing an agreement under Section 3(3)
because it is a deeming provision. Section 19(3) being a deeming provision does
not deprive the Commission of its powers to apply these factors while
determining AAEC. Section 19(3) is a mandatory provision and the Commission is
bound to apply these factors for arriving at AAEC. The deemed provisions of
Section 3(3) is for forming a prima facie opinion and not the final one. The
parameters given in Section 19(3) are not the 'cause' of AAEC but a result
thereof.

III. In Technology Products vs. Bangalore Electricity Supply Co. Ltd.12 (decided on
22.11.2011), the CCI relied on a Supreme Court decision13 to emphasize that all
Government procurement should take place by tender process. The Commission noted
that if in every tender document only one person gets an order to the exclusion of
others, it amounts to foreclosure of competition by creating entry barriers into the
market and thereby, violative of Section 19(3) of the Act. If the tender document is
designed so as to create barriers and hindrances to new entrants in the market, it would
amount to anti-competitive practice.

12
Case No. 58/2011.
13
Nagar Nigam v. Al Faheem Meat Exports Pvt. Ltd. (2006) 13 SCC 382.

10
IV. Adjudicating on the acts and conduct of the film associations/bodies, the CCI in Eros
International Media Limited and Ors. vs. Central Circuit Cine Association, Indore and
Ors.14 (Case No. 52 and 56 of 2010 decided on 16.02.2012), observed as under:

a) Due to the acts and conduct of the OPs (film associations), no producer,
distributor or exhibitor can exploit his films and compete with the existing
members of the associations. The producers, distributors and exhibitors are
forced to follow the dictates and directions of the associations and if they fail to
follow, they are punished or boycotted, thereby, depriving them an opportunity
to compete effectively in the area of control of these associations.

b) There is a foreclosure of competition in the areas under the control of KFCC,

since non-Kannada films cannot be released in all the cinemas but only in
restricted theatres. The restrictions on non-Kannada films in areas under the
control of KFCC also do not benefit the consumers as the consumers are
deprived of watching movies of their choice.

c) The acts and conducts of association do not bring in any improvement in

production or supply of films in any manner or bring any technological
improvements. Instead, the terms and conditions, rules and regulations of the
associations create barriers to entry for the producers, distributors and
exhibitors who are not their members and who do not agree with their rules
/regulations, terms and conditions.

d) The boycott imposed by the association drives existing competitors out of the
market since the absence of competing product, members or non-members from
the market place would mean reduced competing products and lesser
competition in the market.

14
2012 CompLR 20 (CCI).

11
In view of the aforesaid observations and analysis of factors enshrined in Section 19(3),
the Commission held the acts and conduct of the film associations in this case caused
AAEC in the relevant market.

V. In Reliance Big Entertainment Limited vs. Karnataka Film Chamber of Commerce15

(Case No. 25/2010 decided on 16.02.2012), concurring with the findings of the DG, the
CCI concluded that the clauses of the Articles of Association of the enterprise clearly
showed that it was restrictive in nature. The clauses allowed for the following entry
barriers: prohibiting members to deal with non-members; forcing mandatory
registration; enforcing restrictions on the number of cinema halls and multiplexes for
non-Kannada films; prohibition against dubbing; etc. Similar observations were noted in
Mrs. Manju Tharad vs. Eastern India Motion Picture Association.16

VI. The CCI in Automobile Dealers Association vs. Global Automobiles Ltd.17 (decided
on 03.07.2012) inter-alia observed in 11.9 as under:

“The existence of first three factors would normally indicate AAEC while the
absence would normally indicate no AAEC. The presence of the remaining three
factors would normally indicate no AAEC as they are in nature of efficiency
justifications. The absence of the last three factors alone can neither determine
AAEC nor establish efficiency justifications. In most cases, therefore, it is more
prudent to examine all the above factors together to arrive at a net impact on
competition.

VII. The CCI in the matter of Shamsher Kataria vs. Honda Siel Cars India Ltd and
Others18 (Case No. 3/2011 decided on 25.08.2014) inter-alia observed that whether an
agreement restricts the competitive process is always an analysis of the balance
between the positive and the negative factors. The relevant para of the Order reads as
under:

15
2012 CompLR 269 (CC)
16
2012 Comp LR 1178 (CCI).
17
2012 CompLR 827 (CCI).
18
2014 CompLR 1 (CCI).

12
 “20.6.11 - It should be noted that as per the provisions of section 3(4) of the Act,
only agreements which causes or is likely to cause an AAEC on competition in
India shall be subject to the prohibition contained in section 3(1) of the Act.
Therefore, in order to determine if the agreements entered between the OEMs
and the authorized dealers are in the nature of an ‘exclusive distribution
agreement’ or ‘refusal to deal’ under section 3(4)(c) and 3(4)(d) of the Act, the
Commission needs to determine if such agreements cause an AAEC in the market
based upon the factors listed in section 19(3) of the Act. It is pertinent to note
that clauses (a)-(c) of section 19(3) deals with factors which restrict the
competitive process in the markets where the agreements operate (negative
factors) while clauses (d)-(f) deals with factors which enhance the efficiency of
the distribution process and contribute to consumer welfare (positive factors). An
agreement which creates barriers to entry may also induce improvements in
promotion or distribution of goods or vice-versa. listed under section 19(a)-(f).
Thus, whether an agreement restricts the competitive process is always an
analysis of the balance between the positive and the negative factors.

Thus, CCI opined that in instances where an agreement, irrespective of the fact that it
may contain certain efficiency enhancing provisions, allows an enterprise to completely
eliminate competition in the market, and thereby become a dominant enterprise and
indulge in abusive exclusionary behavior, the factors listed in section 19(3)(a)-(c) should
be prioritized over the factors listed in section 19(3)(d)-(f).

VIII. Keeping in view the holistic picture, the CCI in Association of Third Party
Administration vs. General Insurer (Public Sector) Association of India (Case No.
107/2013 decided on 04.01.2016) opined as under:

a) The formation of HITPA by way of a JV by the PSGICs was a commercial decision

aimed at combating the inefficiencies and deteriorated services provided by the
existing TPAs. Even on analyzing the impact of JV i.e. HITPA in terms of the
provisions contained in section 19(3) of the Act, it does not appear that HITPA
would affect the market for TPAs in any appreciable adverse manner.

b) Evidently, the existing TPAs would have to forego some business to the newly
formed HITPA which is common phenomenon in any market facing new entrants,
however, this does not seem to cause absolute foreclosure for the existing TPAs.

13
Agreeing with the contentions of the PSGICs, the Commission was of the view that the
existing TPAs would continue to remain on their panel and the newly formed HITPA
would be one amongst other TPA. The Commission further opined that the choice of
consumers largely based on the efficiency in services would be the sole criteria that
would guide the PSGICs in their choice of TPAs and that no preferential treatment or
reservation would be accorded to HITPA vis-à-vis other existing TPAs.

IX. In Builders Association of India vs. Cement Manufacturers' Association19 (Case No.
29/2010 decided on 31.08.2016) summing up the already established framework of
Section 19(3) and its interplay with Section 3(3) of the Act, the CCI opined as follows:

a) In case of agreements as listed in Section 3(3) of the Act, once it is established

that such an agreement exists, it will be presumed that the agreement has an
appreciable adverse effect on competition within India and the onus to rebut this
presumption would lie upon the Opposite Parties. The parties may rebut the
presumption in light of the factors enumerated in Section 19(3) of the Act. While
clauses (a)-(c) deal with factors which restrict the competitive process in the
markets where the agreements operate (negative factors), clauses (d)-(f) deal
with factors which enhance the efficiency of the distribution process and
contribute to consumer welfare (positive factors).

b) An agreement which creates barriers to entry may also induce improvements in

promotion or distribution of goods or vice-versa. Hence, whether an agreement
restricts the competitive process is always an analysis of a balance between the
positive and negative factors listed in Section 19(3) of the Act.

In the context of factual matrix, the CCI was of the view that the Opposite Parties failed
to prove as to how the impugned conduct resulted into accrual of benefits to consumers
or made improvements in production or distribution of goods or provision of services
and how the concerted act promoted technical, scientific or economic development by

19
2016 CompLR 983 (CCI).

14
means of production or distribution of goods or provision of services. The Commission’s
analysis on capacity utilisation indicated that capacity utilisation significantly declined,
meaning thereby that there was no efficiency improvement in the market. Moreover,
the concerted action led to rise in cement prices which turned out to be detrimental to
the consumers in the market. In view of the foregoing, the Commission held that the
Opposite Parties by acting in concert and fixing cement prices and limiting and
controlling the production and supply in the market contravened the provisions of
Section 3(1) read with Section 3(3)(a) and 3(3)(b) of the Act.

X. In Delhi Jal Board vs. Grasim Industries Ltd. and Ors.20 (Case Nos. 3 and 4 of 2013
decided on 05.10.2017), it was submitted by the OPs that:

a) DG did not conduct analysis under Section 19(3) to assess the conduct of GACL
before arriving at the conclusion of violation of Section 3 of the Act and there
was no evidence even remotely suggesting that existing competitors were driven
out from the market.

b) GACL's entry into the PAC market in fact added a new player to a concentrated
market and it did not foreclose any competition among different players in the
PAC business.

c) No consumer harm was caused in relation to the alleged collusion as there was
no point where PAC supply to DJB was disrupted or stopped and on the contrary,
there has been an accrual of benefits to the consumers.

d) There is no AAEC because supply of PAC was not disrupted or stopped by the
bidders and the DG also failed to prove AAEC due to the acts and conduct of the
OPs.

In line with its previous orders, the CCI reiterated that in case of agreements as listed in
Section 3(3) (a) – (d) of the Act, once it is established that such an agreement exists, it

20
2017 CompLR 864 (CCI).

15
will be presumed that the agreement has an appreciable adverse effect on competition
and there is no further need to have actual proof as to whether it has caused
appreciable effect on competition. The onus to rebut the presumption then lies upon
the Opposite Parties. In the light of the factual matrix, it was held by the Commission
that ‘accrual of benefits to the consumers’ which is one of the factors enumerated in
Section 19(3), cannot be viewed only from the perspective of continuous supply of the
tendered product or supply at negotiated price. The procurement should be at a
competitive price, more so when the procurer is a public authority. When the bids are
quoted pursuant to a collusive action by the bidders, even post bid negotiations cannot
guarantee lowest rates because the procurer cannot ascertain the most competitive
price prevalent in the market. This causes loss to the public exchequer and, in turn,
harms the public at large. Disagreeing with the submissions made by the OPs, the
Commission was of the opinion that the bidders i.e. ABCIL, GIL and GACL acted in a
concerted manner in respect of the tenders floated by DJB during 2009- 10 to 2014-15
for procurement of liquid PAC in contravention of the provisions of Section 3(1) read
with Section 3(3)(d) of the Act.

XI. In G. Krishnamurthy vs. Karnataka Film Chamber of Commerce21 (Case No. 42/2017
decided on 30.08.2018), the issue which arose before the CCI was whether the act of
banning or interdicting production and release of dubbed content by the OPs is anti-
competitive and in contravention of the provisions of Section 3 of the Act. The
Commission on perusal of the material available on record, submissions made by the
parties and the DG report found merit in the allegations of the Informant and
accordingly opined and held:

a) By taking upon themselves the responsibility and authority to decide whether

dubbed cinema will be displayed in theatres in the State of Karnataka or not, the
OPs have interfered in free play of market forces and created disruptions in the
supply chain via which movies reach customers. Such conduct denies the
customers the opportunity to watch dubbed cinema which may be entertaining
or have some social message and also discourage the artists/producers/

21
2018 CompLR 907 (CCI).

16
 exhibitors to actively participate in the promotion of dubbed cinema and deprive
them of their livelihood. Thus, the conduct of the OPs cannot be perceived to
bring any efficiency or any other consumer benefits as such so as to off-set the
anti-competitive effects it has led to. Their conduct appears to have seriously
restricted/limited the consumers' choice despite demand in the market for
dubbed Kannada films.

b) The conduct of the OPs has resulted in AAEC in terms of Section 19(3)(a) and
Section 19(3)(c) of the Act as it has created barriers for new entrants in the
market, in as much as dubbed movies have been prevented from competing with
regional Kannada movies, as well as there has been foreclosure of competition in
the market. Further, the conduct of the OPs has neither resulted in accrual of any
benefits to consumers under Section 19(3)(d) of the Act, nor has resulted in any
improvement of production or distribution of goods or services, as provided
under Section 19(3)(e) of the Act.

c) By indulging in severe opposition against dubbed movies, the OPs have not only
impeded the exhibition of already dubbed movies, but also adversely affected
the prospects of upcoming dubbed movies. Blockbuster Telugu movie 'Bahubali',
got dubbed in Hindi, Tamil and Malayalam, but not in Kannada language, as OP-1
did not permit the same. There are ample examples of such denial of permission
and protests against dubbed Kannada content by various associations in
Karnataka, including OP-1, including tele-series 'Jhansi ki Rani' and Aamir Khan's
famous TV talk show 'Satyamev Jayate'.

d) Because of the stern reaction of mighty organizations like OP-1 in the past many
years, the market for dubbed Kannada content in the State of Karnataka has
already been affected to a large extent. The facts on record clearly demonstrate
that because of the threats and vandalism by the OPs, the Informant's film never
came to be released commercially and only a handful of theatres screened a few
shows, that also without any publicity. Further, even in these few theatres where
the movie was released, it could not gather significant number of viewers.

17
 e) OP-1 to OP-5 have acted in tandem towards the common cause of impeding the
entry of dubbed Kannada movies/content in the State of Karnataka and have,
through their acts/conduct and common understanding, given effect to anti-
competitive ends.

In view of the forgoing observations and analysis, the Commission was of the view that
the totality of evidence inextricably led to the finding that all the OPs collectively
indulged in conduct/practices, that led to restriction on the exhibition of dubbed
Kannada movies/content in the State of Karnataka which amounts to contravention of
the provisions of Section 3(1) of the Act and these concerted acts of the OPs resulted in
AAEC in respect of the market for dubbed movies in the State of Karnataka. The
examination of the factors under Section 19(3) of the Act brought out strong presence
of AAEC. Furthermore, these acts were also held to be in contravention of Section
3(3)(b) of the Act as they resulted in limiting and restricting the market for dubbed
cinemas in the state of Karnataka, to the detriment of producers of dubbed cinema, like
the Informant, dubbing artists and also the consumers, who got deprived of viewing
such cinema, in their local language.

XII. In Madhya Pradesh Chemists and Distributors Federation vs. Madhya Pradesh
Chemists and Druggist Association22 (Case No. 64/2014 decided on 03.06.2019),
disagreeing with the submissions of OPs, the CCI observed and opined as follows:

a) Existence of strong documentary evidence clearly brings out the fact that OP-12
was obtaining clearance from OP-1 and/or its district association prior to
appointment of a new stockist.

b) By mandating NOC/LOC requirement for appointment of stockists, the potential

stockists have been discouraged in entering the distribution channel so as to
ensure wider options both to the consumers and pharmaceutical companies. By
imposing the condition of NOC/LOC, the entry of potential stockists can be

22
MANU/CO/0021/2019.

18
 restricted even if they are otherwise satisfying the requisite criteria as may be
laid down by respective pharmaceutical companies. Such a restrictive practice
does not accrue any benefits to end consumers and the availability of medicines
to the consumers can be adversely affected both in terms of quantity as well as
its availability at competitive prices.

c) The contravening trade association (OP-1) and pharmaceutical company (OP-12)

have failed to exhibit that such NOC/LOC practice is in any manner beneficial in
terms of factors laid down under clauses d), (e) and (f) of Section 19(3) of the
Act.

XIII. Vide one of its recent order passed in Nadie Jauhri vs. Jalgaon District Medicine
Dealers Association23 (Case No. 61/2015 decided on 20.06.2019), in concurrence with
DG’s observations and findings, the CCI was of the opinion that the practice of levying
PIS charges by the OP would result in appreciable adverse effect on competition in the
market, based on the factors listed under Section 19(3) of the Act, due to the following
reasons:

a) Firstly, the said practice would distort supply of medicines in the market and
create barriers to entry for pharmaceutical companies planning to enter the
market.

b) Secondly, the practice would foreclose competition in the market as there are
very few products of similar kind available in the market.

c) Thirdly, action on part of the OP would be detrimental to the economic

development as it would restrict distribution of new drugs or launch by way of
any change in product brand, dosage, form, strength, etc.

d) Fourthly, this practice would put unwarranted restrictions on the freedom of

trade by market participants and finally, the interest of consumers would be
adversely affected by this practice.

23
MANU/C0/0023/2019.

19
XIV. In Nagrik Chetna Manch vs. SAAR IT Resources Private Limited and Ors.24 (Case
No. 12/2017 decided on 02.08.2019), the CCI opined that even if the factors under
Section 19(3) of the Act are to be examined, OP-1 failed to demonstrate as to how its
impugned conduct has resulted in accrual of benefits to consumers or made
improvements in production or distribution of goods/service in question or promotion
of any technical, scientific and economic development by means of production or
distribution of goods or provision of services. Disagreeing with the submissions of OP-1,
the Commission stated:

a) Manipulation in the bidding process itself thwarts provision of goods and

services by credible players, who lose out in the absence of conditions which
foster competition.

b) The whole tendering process itself cannot be said to be without any blemish
when OP-2 itself admitted that it may not have been eligible to submit the bid in
the first place based on technical parameters, but it was for the OP-4 to have
checked on its eligibility.

XV. In Hindustan Petroleum Corporation Ltd. vs. Allampally Brothers Ltd. and Ors.25
(Case No. 1/2014 decided on 09.08.2019), the CCI observed that the OPs other than
making perfunctory remarks against the evidence failed to give any evidence to rebut
the presumption against them under Section 3(3) of the Act. Quoting the Apex Court
decision in Rajasthan Cylinders and Containers vs. Union of India and Another,26 the
Commission noted that the applicability of factors under Section 19(3) arises for
consideration only when the parties covered under Section 3(3) of the Act lead
adequate evidence to rebut the presumption of AAEC which exists against them under
Section 3(3) of the Act. In other words, the threshold of applicability of factors under
Section 19(3) of the Act and for the Commission to examine it from the prism of "rule of
reason" as opposed to "per se" rule, requires that the party charged with has to lead
evidence adequate enough to dispel the presumption against it. The invocation of
24
MANU/CO/0033/2019.
25
MANU/CO/0038/2019.
26
Infra note 38.

20
factors under Section 19(3) is hence, not axiomatic in cases of conduct falling under
Section 3(3) of the Act.

XVI. Recently, in Re: Cartelisation in Industrial and Automotive Bearings and Ors.27
(Case No. 05/2017 decided on 05.06.2020), the CCI opined that rebuttal can be made by
the parties taking recourse to all or any of the factors provided under Section 19(3) of
the Act. In the factual context, the Commission observed that neither of the parties
could demonstrate as to how their impugned conduct resulted into any accrual of
benefits to consumers; improvements in production or distribution of goods or provision
of services; or promotion of technical, scientific and economic development by means of
production or distribution of goods or provision of services, in terms of Section 19(3) of
the Act. By simply stating that the price revisions quoted by the parties to the OEMs are
not in accordance with what was decided between them, the parties cannot rebut the
statutory presumption of AAEC as specified under the provisions of the Act.

XVII. Vide one of its recent ruling in Chief Materials Manager, South Eastern Railway
vs. Hindustan Composites Limited28 (Ref. Case No. 03/2016 decided on 10.07.2020,
placing reliance on the Apex Court decision in Rajasthan Cylinders,29 the CCI reiterated
that once an agreement of the types specified under Section 3(3) of the Act is
established, the same is presumed to have an AAEC within India and such presumption
of AAEC in any case involving contravention of the provisions of Section 3(3) can be
rebutted by the parties by placing on record evidence to the contrary.

In light of the factual matrix, the CCI observed that save and except submitting that the
impugned conduct caused no AAEC, the OPs failed to lead adequate evidence and thus,
failed to rebut the presumption, as per the ratio put forth by the Supreme Court in
Rajasthan Cylinders. The Commission opined that there is no whisper in the replies filed
by the OPs qua some of the factors, i.e. as to how their impugned conduct resulted into
any accrual of benefits to consumers; improvements in production or distribution of

27
(2020) 161 SCL 383 (CCI).
28
MANU/CO/0024/2020.
29
Infra note 38.

21
goods or provision of services; or promotion of technical, scientific and economic
development by means of production or distribution of goods or provision of services, in
terms of Section 19(3) of the Act. In other words, on comprehensive evaluation of the
replies filed by the OPs in light of the factors enumerated in Section 19(3) of the Act, the
Commission was of the view that the parties failed to dislodge the statutory
presumption by adducing cogent evidence as required of them.

Cases decided by COMPAT (Now NCLAT)

I. In Alkem Laboratories Limited vs. Competition Commission of India30 (Appeal Nos. 9,

14 and 15 decided on 10.05.2016), concurring with the submissions made by the
Appellant, the COMPAT observed that:

a) In order to establish an AAEC, it is mandatory for the DG to analyse in detail the

factors laid down in Section 19(3)(a) to (c) of the Competition Act. The DG failed
to prove triggering of any of these factors under and also could not show that
there was a meeting of minds to prove the agreement.

b) DG has failed to conduct any investigation into ascertaining whether there was
any appreciable adverse effect on competition in India. Merely quoting Section
19(3) of the Competition Act is no sufficient to establish AAEC.

II. In L.H. Hiranandani Hospital, Mumbai vs. CCI and Ors.31 (Appeal No. 19/2014
decided on 18.12.2015), the issue which arose before the Appellate Tribunal was
whether the agreement between the Opposite Party and the Cryobanks resulted in
AAEC in India. The COMPAT noted:

a) While it is true that OP placed restriction on other stem cell banks in its
premises, however, it is not correct to say that it created barriers to new
entrants, as no evidence was adduced by DG in this regard. The DG submitted in

30
2016 CompLR 757 (CompAT).
31
2016 CompLR 129 (CompAT).

22
 his supplementary report that there are at least 13 stem cell banks and the
market share of Cryobanks in Mumbai was 34.54% in 2011-12.

b) Citing exclusive tie-in arrangement between OP and Cryobanks, DG stated that

other competitors in the market of stem cell banking services were not allowed
to cater to the maternity patients of OP and that exclusive tie-up arrangement
with a particular service provider and not allowing others to utilize its
infrastructure led to driving the existing competitors of Cryobanks out of the
market. However, there was no evidence to show that any of the existing stem
cell bank was driven out of the market that may be relatable to the agreement
signed between the OP and Cryobanks.

c) Citing market share of OP in the relevant market, the DG submitted that the OP
foreclosed 62.27% of the market. However, no evidence of any sort relating to
foreclosure of competition by hindering entry into the market was produced.
Furthermore, for the purpose of Section 3, foreclosure effect has to be assessed
from ‘market’ perspective, for which ‘relevant market’ need not be taken into
account.

d) In the minority opinion of the order under challenge, Dr. Geeta Gouri correctly
analysed Section 3 read with Section 19 and concluded that there was no
violation of Section 3(3) or 3(4) of the Act.

In view of these observations and findings, the Appellate Tribunal concurred with the
minority view of the CCI order, reversed the finding recorded by the majority of the
Commission and held that the agreement entered into between the Appellant and
Cryobanks for providing stem cell banking service did not violative of Section 3(1) of the
Act and hence, there was no AAEC and accordingly no case for violation under Section
3(4).

III. In Kerala Film Exhibitors Association vs. Competition Commission of India (Appeal
No. 99/2015 decided on 19.04.2016), it was held by COMPAT that the agreement and

23
the practices of restricting fresh releases to the approved theatres of KFEF led to
appreciable adverse effect on competition due to the following reasons:

a) New entrants would not get fresh releases because of cartelization by OP1 and
compliance to it by OP2, and thus, not in a position to survive in this market.
(Creation of barriers to new entrant in the market)32

b) The theatres of KCEA were not getting fresh releases because of which their
revenue was far less compared to KFEF members and many of its theatres got
prematurely closed. (Driving existing competitors out of the market)33

c) The competitor theatres, i.e. members of KCEA were not given fresh releases,
thereby deprived of the main source of revenue. (Foreclosure of competition by
hindering entry into the market)34

d) The consumers in non-release centres such as rural and semi-urban areas got
adversely affected by such agreement and practices of KFEF as they could not
watch new films or were forced to travel long distances to watch them. (Accrual
of benefits to consumers)35

e) The distribution of new films in the State of Kerala was adversely affected
(Improvement in production or distribution of goods or services)36

IV. Upholding the order passed by CCI as well as the findings of the DG’s report, in
Karnataka Film Chamber of Commerce vs. Kannada Grahakara Koota37 (Appeal No.
13/2016 decided on 10.04.2017, the Competition Appellate Tribunal observed:

a) The Appellant, KTVA and KFPA being associations of enterprise engaged in the
production and exhibition of films and TV programmes can be treated to be
32
S. 19(3)(a).
33
S. 19(3)(b).
34
S. 19(3)(c).
35
S. 19(3)(d).
36
S. 19(3)(e).
37
2017 CompLR472 (CompAT).

24
 engaged in similar or identical trade and any agreement or joint action taken by
them would attract the provisions of Section 3(3) of the Act, being in the nature
of horizontal agreement.

b) These associations collectively decided not to allow production, distribution and

exhibition of films and television serials dubbed in Kannada language, thereby
impeding competition in the market. By not allowing dubbed version, they
restricted supply of content in the market and caused foreclosure of competition
by hindering entry into the market in terms of Section 19(3)(c) of the Act.

c) The factors listed in clauses (d) to (f) of Section 19(3) of the Act do not apply to
justify the conduct of the associations as no benefit was accrued to the
customers; there was no improvement in production or distribution of
goods/services by such restrictive practices and also, these practices did not
cause promotion of technical, scientific and economic development.

Cases decided by the Supreme Court

I. The Hon'ble Supreme Court in Rajasthan Cylinders and Containers Ltd. vs. Union of
India and Another38 highlighted the broad scheme of Section 19(3) in respect of the
agreements falling under Section 3(3) of Competition Act. The relevant portions of the
judgment are produced as under:

Para 72: “[O]ne of the anti-competitive practices is cartelisation, the essential

postulate whereof is agreement between enterprises or association of enterprises
or persons or associations of persons in respect of production, supply,
distribution, storage, acquisition or control of goods or provisions of service,
which causes or is likely to cause an appreciable adverse effect on competition
within India. Such an agreement is treated as void. The types of agreement which
may fall foul of Section 3 are mentioned in Sub-section (3) thereof. These include
sharing the market by way of allocation of geographical areas of market [clause
(c)] and the agreements which result in bid-rigging or collusive bidding whether
directly or indirectly [clause (d)]. There is a presumption that four types of

38
2018 (13) SCALE 493.

25
 agreements mentioned in Sub-section (3) will have an appreciable adverse effect
on competition.”

Para 73: “We may also state at this stage that Section 19(3) of the Act mentions
the factors which are to be examined by the CCI while determining whether an
agreement has an appreciable adverse effect on competition Under Section 3.
However, this inquiry would be needed in those cases which are not covered by
Clauses (a) to (d) of Sub- section (3) of Section 3. Reason is simple. As already
pointed out above, the agreements of nature mentioned in Sub-section (3) are
presumed to have an appreciable effect and, therefore, no further exercise is
needed by the CCI once a finding is arrived at that a particular agreement fell in
any of the aforesaid four categories. We may hasten to add, however, that
agreements mentioned in Section 3(3) raise a presumption that such agreements
shall have an appreciable adverse effect on competition. It follows, as a fortiori,
that the presumption is rebuttable as these agreements are not treated as
conclusive proof of the fact that it would result in appreciable adverse effect on
competition. What follows is that once the CCI finds that case is covered by one
or more of the clauses mentioned in Sub-section (3) of Section 3, it need not
undertake any further enquiry and burden would shift upon such enterprises or
persons etc. to rebut the said presumption by leading adequate evidence. In case
such an evidence is led, which dispels the presumption, then the CCI shall take
into consideration the factors mentioned in Section 19 of the Act and to see as to
whether all or any of these factors are established. If the evidence collected by
the CCI leads to one or more or all factors mentioned in Section 19(3), it would
again be treated as an agreement which may cause or is likely to cause an
appreciable adverse effect of competition, thereby compelling the CCI to take
further remedial action in this behalf as provided under the Act. That, according
to us, is the broad scheme when Sections 3 and 19 are to be read in conjunction.”

The dicta of Rajasthan Cylinders on Section 19(3) as put forth by the Apex Court has
been followed, reiterated and relied on by the Competition Commission, Competition
Appellate Tribunal and National Company Law Tribunal in numerous decisions.

II. In Fefka Production Executives Union and Anr. vs. Competition Commission of India
and Ors.39 the Hon’ble Apex Court has upheld the order passed by the NCLAT in
Association of Malayalam Movie Artists and Ors. vs. Competition Commission of India40

39
Civil Appeal No. 3186/2020.
40
MANU/NL/0205/2020.

26
(Appeal Nos. 5, 8 and 10, decided on 13.03.2020) wherein the Appellate Tribunal in
concurrence with the CCI order opined that the Appellants- Association of Malayalam
Movie Artists' ('OP-1'), Film Employees Federation of Kerala' (OP-2), FEFKA Director's
Union' (OP-6) and 'FEFKA Production Executive's Union' (OP-7), acted in violation of
Section 3(3) of the Act and failed to rebut the presumption of AAEC in line with the
factors enumerated in Section 19(3) and accordingly, the Appellants and their office
bearers were held to be liable under Section 48 of the anti-competitive conduct.

CONCLUSION

By way of this article, we dealt the applicability and scope of factors enumerated in
Section 19(3) on the agreements, vertical as well as horizontal, which are required to be
tested on the criteria of AAEC. An inquiry or investigation relating to anti-competitive
agreements can be contested before the CCI/DG in due consideration of the factors
given in Section 19(3). To put it in simpler words, factors under Section 19(3) are the
statutory defences available to the contesting party. In so far as horizontal agreements
are concerned, Section 19(3) is a deeming provision and the burden is on the party that
is alleged to have entered into horizontal agreements to prove that its act and conduct
does not create barriers to new entrants in the market, do not drive existing
competitors out of the market or do not foreclose competition by hindering entry into
the market. The party to horizontal agreements, depending on the facts and
circumstances, may also have to prove that the said agreements are beneficial to
consumers, improve production/distribution of goods and provision of services or
promote technical, scientific and economic development. On the other hand, in case of
vertical agreements, the onus to prove contravention of Section 3(4) and AAEC due to
such contravention lies on the complainant as the AAEC in such cases is determined on
the rule of reason unlike horizontal agreements which are presumed to be anti-
competitive per se.

We discussed the classification of factors determining AAEC into negative factors and
positive factors. Factors enumerated in clause (a) to (c) of Section 19(3) are negative
factors which usually indicate AAEC unless proven otherwise. The other three factors

27
mentioned in clauses (d) to (f) are in the nature of efficiency justifications and even
though they do not indicate AAEC, yet they are vital to determine the presence or
absence of AAEC in the market and it is therefore, prudent to examine all six factors
together to determine the overall impact on competition. The story, however, does not
end here. In order to understand how the interplay of these factors has proved to be
decisive in evaluating the impact of horizontal as well as vertical agreements on the
competition, we have discussed decisional practice by the authorities by way of a
plethora of orders and judgments passed by the CCI, COMPAT (and NCLAT) and the
Supreme Court. As per the broad scheme of Section 19(3) read with Section 3(3)
formulated by the Supreme Court in Rajasthan Cylinders judgment (supra), once the CCI
finds that case is covered by one or more of the clauses of Section 3(3), it need not
undertake any further enquiry and burden would shift upon the opposite party to rebut
the presumption of AAEC by leading adequate evidence. If an evidence dispelling the
presumption is led, the CCI shall consider the factors mentioned in Section 19 to see
whether all or any of these factors are established. If the evidence collected by the CCI
leads to one or more factors mentioned in Section 19(3), it would again be treated as an
agreement which may cause or is likely to cause AAEC, thereby compelling the CCI to
take further remedial action. In line with the framework of Section 19(3) as well as the
said Apex Court ruling, the Competition Authorities (CCI, COMPAT and NCLAT) by way of
judicial orders have observed, opined and held as follows:

I. For applicability of Section 19(3)(a), (b) & (c), there should be an agreement of
the nature defined under Section 2(b) of the Act, which creates barriers to new
entrants in the market or forecloses competition by hindering entry into the
market. In any market, any firm is free to leave the market.

II. While determining whether an agreement has an appreciable adverse effect on

competition under Section 3 of the Act, the Commission as well as DG shall
have due regard to all or any of the Section 19(3) factors.

III. It is wrong to presume that the parameters prescribed under Section 19(3) are
not required to be applied while assessing an agreement under Section 3(3)

28
 because it is a deeming provision. Section 19(3) being a deeming provision does
not deprive the Commission of its powers to apply these factors while
determining AAEC. Section 19(3) is a mandatory provision and the Commission
is bound to apply these factors for arriving at AAEC.

IV. The barrier to entry for competing firms must not be confused with difficulties
in exit, if any, faced by the consumers. Therefore, any aspect of any
inconvenience or difficulty faced by consumers must be examined in the
context of Section 19(3)(d) which makes accrual of benefits to the customers as
one of the determinant factors for assessing appreciable adverse effect. If a
consumer finds it difficult to shift from one bank to another due to prepayment
charges, that difficulty must be examined under this clause.

V. The practice of levying pre-payment penalty and foreclosure charges by the

banks and financial institutions acts as an exit load, restricts or limits the
borrower from availing the best market rate of interest and impedes
competition among lending institutions.

VI. If in every tender document only one person gets an order to the exclusion of
others, it amounts to foreclosure of competition by creating entry barriers into
the market and thereby, violative of Section 19(3) of the Act. If the tender
document is designed so as to create barriers and hindrances to new entrants
in the market, it would amount to anti-competitive practice.

VII. In order to determine if the agreements entered between the OEMs and the
authorized dealers are in the nature of exclusive distribution agreements or
refusal to deal, the Commission needs to determine if such agreements cause
an AAEC in the market based upon the factors listed in section 19(3) of the Act.

VIII. An agreement which creates barriers to entry may also induce improvements in
promotion or distribution of goods or vice-versa. Hence, whether an agreement
restricts the competitive process is always an analysis of a balance between the
positive and negative factors listed in Section 19(3) of the Act.

29
 IX. Accrual of benefits to the consumers which is one of the factors enumerated in
Section 19(3), cannot be viewed only from the perspective of continuous supply
of the tendered product or supply at negotiated price. The procurement should
be at a competitive price, more so when the procurer is a public authority.
When the bids are quoted pursuant to a collusive action by the bidders, even
post bid negotiations cannot guarantee lowest rates because the procurer
cannot ascertain the most competitive price prevalent in the market.
Manipulation in the bidding process itself thwarts provision of goods and
services by credible players, who lose out in the absence of conditions which
foster competition.

In view of the decisional practices by Competition Authorities across the length and
breadth of numerous judicial orders, it is fair to conclude that examining the horizontal
and vertical agreements on the yardstick of factors mentioned in Section 19(3) has
proved to be vital and decisive in evaluating and determining the overall impact on
competition and both the CCI as well as the Appellate Tribunal(s) have accorded primacy
to the these factors while determining whether or not the agreements in question are
anti-competitive and have an appreciable adverse effect on competition.

30
PREVIOUS ARTICLES ON INDIAN COMPETITION LAW BY LEX INDIS:

● Indian Competition Law: Analyzing The Provisions Of Anti-Competitive Agreements

(Section 3) (Part 2)

● Indian Competition Law: Analyzing The Provisions Of Anti-Competitive Agreements

(Section 3) (Part 1)

● Indian Competition Law: Analyzing the Provisions of Abuse of Dominance (Part 2):
https://www.linkedin.com/feed/update/urn:li:activity:6735832685069049856

● Indian Competition Law: Analysing the Provisions of Abuse of Dominance (Part 1):
https://www.linkedin.com/feed/update/urn:li:activity:6725656740676857856

● Indian Competition Law: Whether the Determination of “Relevant Market” Is a

Mandatory Pre-Condition for Making Assessment of AAEC for the Alleged
Contravention of Provisions of Section 3(3) Of The Competition Act?:
https://www.linkedin.com/posts/lex-indis-law-offices_competition-law-activity-
6716280544092569600-swLI

● Indian Competition Law: Whether the Scope of Section 3(1) is Independent of

Section 3(3) and Section 3(4) Which Do Not Limit the Scope of Section 3(1)?:
https://www.linkedin.com/posts/lex-indis-law-offices_indian-competition-law-
activity-6712229831389585408-bCww

● Indian Competition Law: Whether Regulation Providing Proceedings Before the CCI
Not to Be Open to the Public is Consistent With the Provisions of the Competition
Act, 2002: https://www.linkedin.com/posts/lex-indis-law-offices_competition-law-
activity-6709428001576153089-zU1U

● A Presentation on Intellectual Property Laws and Competition Laws:

https://www.linkedin.com/posts/lex-indis-law-offices_intellectual-property-laws-
and-competition-activity-6706071670815293440-Vg4D

31
● Indian Competition Law: Need for Examining the Powers of the Civil Court
Conferred on the Director General During Investigation (Section 41(2)):
https://www.linkedin.com/posts/lex-indis-law-offices_dgs-power-of-examination-
activity-6704651409066905601-WRWd

● Indian Competition Law: Need for a Fresh Look on Transition from “Prejudicial to
Public Interest” to “Appreciable Adverse Effect on Competition” or “Abuse of
Dominance” in Final Orders: https://www.linkedin.com/posts/lex-indis-law-
offices_pi-to-aaec-activity-6701058770526629888-iP3v

● Exemptions of Intellectual Property Rights under Indian Competition Law - Real or

Illusory?: https://www.linkedin.com/posts/lex-indis-law-offices_competition-law-
activity-6694259121773981696-aO7B

● Evolution of Compensation Law Under the Indian Competition/Antitrust Laws:

Part I (https://www.linkedin.com/posts/lex-indis-law-offices_competitionlaw-
compensation-law-activity-6684051617442078721-FvH_) , Part II
(https://www.linkedin.com/posts/lex-indis-law-offices_competitionlaw-
compensation-law-activity-6687235626988834816-yk-p) and Part III
(https://www.linkedin.com/posts/lex-indis-law-offices_as-part-of-the-competition-
law-team-of-lex-activity-6692042758204522496-q1S7)

● Virtual Conversation on Facebook-Jio-Reliance Deal vis-a-vis Contours of

Competition Law: https://www.linkedin.com/events/webinaronfacebook-jio-
reliancedeal-contoursofcompe/

● Legal Status of Facebook Inc. Investment in Reliance Industries Limited (Jio

Platforms) Qua The Competition Act, 2002: https://www.linkedin.com/posts/lex-
indis-law-offices_facebook-jio-ril-investment-contours-of-activity-
6676114104220053504-oBqq

32
 Disclaimer

While Lex Indis Law Offices has paid meticulous attention to the contents of this material to
ensure its accuracy, we assume no responsibility for any error, factual or legal, which might have
crept in. This article has been published for academic research and private circulation only.
Information in this material does not constitute rendering of legal advice. Such information must
not be construed as solicitation of work as expressly prohibited by the Bar Council of India.

Authors

Sunil Kumar Gandhi, Senior Partner; Dr. Vijay Kumar Aggarwal, Senior Consultant, Head,
Competition Law and Policy; Sankalp Jain, Associate; Anmol Vashisht, Associate of Lex Indis Law
Offices.

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